Impaled on Morton’s Fork–Why Your Machine Can’t Call My Machine

Some debt collectors continue to use messages that are clearly out of bounds when calling their customers to collect past due payments. For example, leaving a message on the customer’s personal voice mail or answering machine with just the caller’s name and a request to call back to a specific telephone number will not pass muster under the federal Fair Debt Collection Practices Act (FDCPA). In one U.S. District Court case, the following message was held to violate 15 U.S.C. § 1692d(6), because the caller did not identify her company or the fact that the company is a debt collector, and § 1692e(11), because the call was the initial contact, and she failed to state that the purpose of the call was to collect a debt: “Hi Cindy, this is Eva, can you call me quick when you get this message. My office number is…” Even a business-like approach will not work, “Good day, we are calling from [collector’s name] regarding a personal business matter that requires your immediate attention. Please call back, toll free…this is not a solicitation.”
 
The courts have said, on more than one occasion, that recorded messages are “communications,” not attempts at communication. The placement of telephone calls without meaningful disclosure of the caller’s identity, and that the purpose of the call is to collect a debt is problematic. It is engaging in conduct with the consequence of harassing, oppressing, or abusing a person in connection with the collection of a debt, and is in violation of the FDCPA.
 
Given that, why aren’t debt collectors leaving fully compliant recorded voice messages? There is one other section of the FDCPA that applies here, 15 U.S.C. § 1692(c)(b), which provides that a debt collector must not disclose in communications to the debtor that can be seen (or heard) by a third party that the purpose is to collect a debt. Here is where “Morton’s Fork”—named after John Morton, the Archbishop of Canterbury and minister of Henry VII—comes into play. The term refers to a practical dilemma, a “Catch 22,” in which both choices disadvantage the chooser. Debt collectors are forced to choose between full disclosure in leaving recorded messages, and potentially violating the prohibition on third party disclosure when another person (e.g. a relative, roommate, or visitor) hears the recorded message.
 
Debt collectors argue that they can’t comply with both provisions and that these court decisions make it impossible to comply. The response from the courts is that the FDCPA does not guarantee a debt collector a right to leave answering machine messages. In-person communications, mail, and live telephone calls with the debtor are still permissible, which provides little solace for the industry.
 
Elizabeth A. (Liz) Huber is a partner in Hudson Cook’s Orange County, California Office. She can be reached at 310-686-5050 or email to ehuber@hudco.com. Copyright CounselorLibrary.Com, May 2010, all rights reserved.
 
 
 
 

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